The straw that broke the camel’s back
After the decision by the Supreme Court, Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), many employer lawyers have argued that employees will now have great difficulty prevailing as to retaliation claims. Defense lawyers base their argument on the fact that the Supreme Court ruled retaliation must be the “but for” cause for the challenged adverse action before plaintiffs will prevail.
The notion that Nassar has somehow undercut the viability of retaliation claims turns on the assumption that “but for” causation differs significantly from the traditional concept of causation. Supreme Court precedent following Nassar indicates, however, that causation analysis regarding retaliation claims has not meaningfully changed. In Burrage v. United States, 134 S.Ct. 881 (2014), the Supreme Court directly addressed the definition of “but for” causation. Although a criminal case, Burrage used Nassar as the starting point to analyze the issue. Id. at 887-88. The Supreme Court then quoted legal authority describing “but for” causation as “the minimum concept of cause.” Id. at 888.
The Supreme Court’s unanimous opinion in Burrage ultimately framed the analysis of “but for” causation through a number of metaphorical examples that is perhaps best summed up as follows: “[The predicate act is the ‘but for’ cause if] the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back.” Id. at 888. In sum, the “new” causation standard described in Nassar should not be more difficult to satisfy than the “old” causation standard under employment law and in civil rights cases.